ML20196G971
| ML20196G971 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 06/28/1988 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20196G977 | List: |
| References | |
| CON-#388-6645 OL-1, NUDOCS 8807060064 | |
| Download: ML20196G971 (23) | |
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00CKETED UiNRC June 28, 1988 UNITED STATES OF AMERICA '88 J1 -1 P5 :24 NUCLEAR REGULATORY COMMISSION before the OFna c: : 3 'm 00C/.EitNG . i. i. , ,
ATOMIC SAFETY AND LICENSING APPEAL BOARD E^N'
)
In the Matter of )
)
PUBLIC SERVICE COMPANY ) Docket Nos. 50-443-OL-1 OF NEW HAMPSHIRE, ET AL. ) 50-444-OL-1
)
(Seabrook Station, Units 1 ) (Onsite Emergency and 2) ) Planning and Safety
) Issues)
)
APPLICANTS' APPEAL AND PETITION FOR DIRECTED CERTIFICATION OF AN ORDER OF THE ATOMIC SAFETY AND LICENSING BOARD REJECTING APPLICANTS' SUGGESTION OF MOOTNESS WITH RESPECT TO THE ISSUE OF ENVIRONMENTAL QUALIFICATION OF RG-58 CABLE To The Atomic Safety and Licensina Acceal Board:
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The Applicants, pursuant to the provisions of 10 CFR 52.718(i); 10 CFR 52.785(b), 10 CFR 92.714a and otherwise according to law, hereby request the Atomic Safety and Licensing Appeal Board to review and reverse an order of the Atomic Safety and Licensing Board herein issued on the record during a telephone conference call on June 24, 19881, which order rejected a Suggestion of Mootness filed by the Applicants with respect to the issue of the environmental l
1The entire transcript of the telephone conference is filed herewith as Appendix 1 hereto. The order appears at pages 1177-79 of Appendix 1. ,
8807060064 080628 3 DR ADOCK 05000 ])b0
e qualification of RG-58 cable, and in support thereof, respectfully represent as follows:
STATEMENT OF PRIOR PROCEEDINGS AND FACTS Under date of April 21, 1982, the New England Coalition on Nuclear Pollution (NECNP), filed a contention in this proceeding denominated "NECNP I.B.2" which read in its entirety as follows:
"The Applicant has not satisfied the requirements of GDC 4 that all equipment important to safety be environmentally qualified because it has not soecified the time duration over which the eauiement is avalified." (Emphasis added)2 The contention was admitted for litigation by the Licensing Board on September 13, 1982.3 At the hearing, and over the objection of the Applicants that the only issue open for litigation under the contention as admitted was whether the Applicants had specified time durations for the equipment,4 NECNP was permitted to cross-examine upon, and raise, the issue of whether the qualificatien files in fact demonstrated that various pieces of equipment were environmentally qualified. As part of this 2This text of the contention, which is as it was originally filed, is set out in Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-82-76, 1G NRC 1029, 1050 (1982).
3 Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-82-76, supra, n.2.
4 II. (9/30/86) at 392-94 2
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e effort NECNP introduced NECNP Exhibit 4, which is Electrical Equipment Qualification File No. 113-19-01. At the time NECNP offered its Exhibit 4, and a number of other multi-document exhibits, a colloquy of some length , occurred with respect to the purpose of the offer and, in particular, whether the documents were being offered for the truth of the matters contained.5 During this colloquy, NECNP made the following representation as to the purpose of the offer:
"I am offerina these documents for the truth of the matter asserted therein, but I also believe that in some instances they did impeach the testimony of the witnesses. They are not utterly for the purpose of impeach 3ng the witnesses.
They are also for the purpose of fleshing out the basis upon which these representations are made regarding the qualification of the equipment. I think they are very relevant to the contention." (Emphasis added).6
- On the basis of this statement as to the purpose of the offer, the Applicants stated that there was no objection to, inter alla, NECNP Exhibit 4,7 and the Exhibit was admitted.8 Included in the documents contained in NECNP Exhibit 4 was a letter dated February ll, 18 ? from ITT Suprenaut Division (Joel T. Sibly) to United 193teers and Constructors (George Morris), otating that on tl basis of tests performed on RG-5 21 (9/30/86) at 460- 1.
6 II. (9/30/86) at 460.
7 1r. (9/30/86) at 460.
8 II. (9/30/86) at 473.
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59 cable the vendor was confident that RG-58 cable was qualified.9 Also included in NECNP Exhibit 4 was a memorandum, dated October 10, 1985, which purports to describe how cables may be identified as being required to perform a safety function.10 In a Partial Initial Decision issued on March 25, 1987,11 the Licensing Board found that RG-58 Cable had been adequately qualified on the basis of the February 11, 1983 letter described above and other materials in Exhibit 4.12 NECNP appealed this finding arguing, in essence, that the documentation which it had introduced for the truth of the matters contained should not be believed and could not and should not be relied upon by the Licensing Board.13 In response, the Applicants pointed out in their brief that the evidence telied upon by the Licensing Board had been introduced without restriction by NECNP itself,14 and argued 9NECNP Ex. 4 Ref. 4.
10NECNP Ex. 4 Ref. 6. Also reproduced as an Appendix to this Appeal Board's decision of April 25, 1988. Public Service Company of New Hamoshire (Seabrook Station, Units 1 l and 2), A LAB-8 91 __ NRC (April 25, 1988).
I j 11Public Service Comoany of New Hamoshire (Seabrook l Station, Units 1 and 2), LBP-87-10, 25 NRC 177 (1987).
12LBP-87-10, supra n.9, Findings Nos. 68-70.
13New Encland Coalition on Nuclear Pollution's Brief in Succort of Acceal of Partial Initial Decision Authorizino Issuance of a License to Operate at Low Power (May 8, 1987) at 22-23.
14Brief of Aeolicants (June 3, 1987) at 18.
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that in any event the entire subject was well beyond the contention which had been admitted.15 This Appeal Board issued a decision on October 1, 1987 in which it, inter alia, reversed the Licensing Board on the RG-58 Cable issue.16 In so doing, this Appeal Board never addressed the Applicants' argument that the contention, as filed and admitted, did not encompass the issue. Rather, this Appeal Board simply stated in passing:
" . . . as litigated, the contention focused upon the capability of equipment subject to GDC 4 to continue to perform its intended function for such period after the accident as might be necessary
-- i.e., whether the equipment is
' environmentally qualified.'"17 The reversal was based upon the Appeal Board's agreement with NECNP that the February 11, 1983 memorandum was insufficient to establish environmental qualification of the RG-58 Cable.18 However, this Appeal Board never addressed the question of how NECNP could be heard to attack evidence which it itself offered for the truth of the matters contained.
15Brief of Acolicants (June 3, 1987) at 19.
16Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-875, 26 NRC 251, 269-71 (1987).
1726 NRC at 270. Accepting the description of the contention as litigated, the fact remains that this Appeal Board simply did not address the briefed and preserved issue of whether it should have been litigated that way in the first place.
1826 NRC at 270-71.
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This Appeal Board described the remand as follows:
. . . the segment of the environmental qualification issue concerned with the RG58 cable must be returned to the Licensing Board. If unable to point to anything in the existing record that establishes that the differ nces in the two cabl's are unimportant tar present purposes, the Board is to reopen the record for a further exploration of tha cuestion whether RG59 cable test results can serve the foundation for the environmental cualification of the RG58 cable." (Emphasis added)19 In response to this remand, the Licensing Board issued an unpublished "Memorandum to the Acceal Board" on October 16, 1988. Therein, the Licensing Board gave a technical explanation based upon materials in the record as to why it believed that had the RG-58 cable been tested, it would have revealed results "similar to those obtained for Cable RG-59, which were acceptable."20 On January 8, 1988, after receiving comments from the Applicants, NECNP and the Staff, this Appeal Board issued a decision rejecting the Licensing Board's analysis.21 However, this Appeal Board also took note of the fact that in their filings with the Appeal Board, the Applicants had raised a new argument, not previously passed upon by the Licensing Board.22 The argument, as 1925 NRC at .
20 Memorandum to the Aeoeal Board (unpublished) (Oct. 16, 1988) at 4.
l 21 P ublic Service Comoany of New Hampshire (Seabrook l
l Station, Units 1 and 2), ALAB-882, 27 NRC 1 (1988).
2227 NRC at 4-5.
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described by this Appeal Board was to the effect that since there was no dispute that the "high potential" test of RG-58 Cable would likely have produced results similar to that produced by such a test of RG-59, this meant the RG-58 was qualified. This was so, Applicants argued because RG-58 cable need only retain its integrity to the extent necessary to avoid compromising the fulfillment of safety functions by other components. Noting that this argument had never been presented to the Licensing Board, this Appeal Board remanded the matter to the Licensing Board to give it an opportunity to do so, noting that if the argument was rejected this Appeal Board's rejection of the previous reasoning of the Licensing Board:
" . . . will necessitate a reopening of the record to pursue further the question whether RG59 cable test results can serve i
as the foundation for the environmental cualification of the RG58 cable."
(Emphasis added).23 i
On March 2, 1988, the Licensing Board issued a decision l
l upholding the Applicants' argument.24 In so doing it relied, inter alia, upon the October 8, 1985 memorandum described l
l 23 27 NRC at _.
24 Memorandum to the Acceal Board on Environmental Qgplification of Coaxial Cable RG-58 (unpublished) (March 2, 1988).
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earlier.25 With respect to that memorandum, the Licensing Board observed:
"NECNP's arguments against the Applicants' response are, in effect, that documents in the Applicants' environmental qualification file do not provide an evidentiary basis for determining the truth of the matters contained therein. . . .
"In addition to the fact that the document in question, EQF 113-19-01, Egg offered and admitted into evidence without limitations as NECNP Exhibit 4 (see Tr. 460), the Applicants' witness, in responding to cross examination by NECNP's counsel, testified that the purpose of the (EQF) files is to keep a verifiable record that the equipment is indeed qualified for the environment to which it might be subjected in an accident. [ citation omitted). . . . That the entries in the various documents are brief, or that the size of the purchase order is for 60,000 feet (11.36 miles),
does not detract from their probative value. They are cart of the record introduced by NECNP and not challenced by NECNP durina their cross examination."
(Emphasis added).26 on April 25, 1988, this Appeal Board again reversed.27 This Appeal Board upheld NECNP's argument that the documentation relied upon by the Licensing Board was in error I
l 25 See n.10, suora, and accompanying text.
26 Memorandum to Acceal Board on Environmental Oualification of Coaxial Cable RG-58 (unpublished) (March 2, 1968) at 6-7. Indeed, as noted earlier, the documents were, l
in fact, expressly offered by NECNP for the "truth of the I matter asserted therein." Egg n.6, supra, and accompanying text.
l 27Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), A LA B-8 91, 27 NRC (April 25, 1988).
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in attaching any weight to the October 10, 1985 memorandum without it being sponsored by a competent witness.28 Again this was done with no mention of the fact that, or analysis as to why it made no difference that, the document was offered by NECNP, itself, expressly for the truth of the matters asserted.29 This Appeal Board concluded its decision by stating that for the reasons expressed therein, the Partial Initial Decision rendered March 25, 1987 was:
" . . . reversed to the extent that it found that the environmental qualification of the RG58 coaxial cable had been established. That issue is remanded to the Licensing Board for further proceedings consistent with this decision.u30 After the last remand, the Applicants made a decision to moot the entire issue by removing all of the RG-58 cable that
{
was required to be environmentally qualified and replace it with RG-59, che qualification of which w1s not at issue.
After that decision was made, the Applicants filed a "Suggestion of Mootness" with supporting affidavits.31 The thrust of this filing was to show that there were only 12 RG-58 cables in the facility which had to be environmentally qualified under the regulations, that a management decision 28ALAB-891, Slip Op. at 19-22, 29 53A n.6, supra, and accompanying text.
3027 NRC , Slip Op. at 25-26.
l 31The Suggestion of Mootness and supporting Affidavits are filed herewith for the Appeal Board's convenience as Appendix 2.
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F had been made to replace these with RG-59 cable and that therefore the issue of the environmental qualification of RG-58 cable was moot.32 On June 2, 1988, the Staff filed a reply to the Applicants' Suggestion of Mootness.33 This reply seemed to raise no quarrel with either the legal theory or the facts as stated in the Suggestion; however, the Staff did fault the Applicants for not giving sufficient detail with respect to certain of the matters dealt with in the affidavits. The Staff suggested a course of action which in essence amounted to the treatment of the Suggestion of Mootness as a motion for summary disposition and advocated giving itself and NECNP sufficient time to reply to the Suggestion in that framework.34 On June 9, 1988, NECNP replied to the 32 On May 27, 1988, the Applicants filed a correction to the original filing which arose from a recatigorization of one of the cables from being "located within mild i
environments within the nuclear island" to "spare." This filing is filed herewith as Appendix 3.
33 l NRC Staff Resoonse to Aeolicants' Succestion 21 Mootaggg (June 2, 1988). This document is filed herewith as Appendix 4.
34 The Staff has persisted in its view that what is i involved here is a summary disposition motion. This is a correct view, only if one prejudges the question of whether the Licensing Board has jurisdiction and authority to delve into the questions of whether the correct cableil were l replaced and whether the replacement cable is th; appropriate one. The thrust of the Applicants' position how,'er, as set forth in Section II of the Argument, infra, is that there exists no jurisdiction or authority to reach these questions, or, if there is, the proper and necessary procedures have not been followed.
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Suggestion of Mootness.35 The gravamen of this filing is a list of questions contained therein which NECNP claims must be resolved prior to this matter being put to rest.36 og note is the fact that in the long list of questions dealing with such matters as how the Applicants determined which RG-58 cables had to be qualified, and whether RG-59 is qualified to replace RG-55, nowhere is there a question, "Is RG-58 environmentally qualified?"; the only issue that was remanded to the Licensing Board.
On June 9, 1988, the Applicants requested,37 and, on June 10, 1988, were granted,38 leave to reply to the Staff and NECNP filings. On June 17, 1988 the reply was filed.39 Inter alia, the reply pointed out:
"The issue remanded to the Licensing Board concerns only whether the RG-58 cable is environmentally qualified. This is the only issue remanded to this Licensing Board and therefore the sole issue over which the Licensing Board has jurisdiction (citation footnote omitted) 35New Encland Coalition on Nuclear Pollution's Resoonse to Acolicants' Succestion of Mootness Recardina Environmental Oualification of RG58 Cable (June 9, 1988). This document is filed herewith as Appendix 5.
36Accendix 5 at 3-4.
37Anolicants' Motion for Leave to File Reolv to Staff and NECNP Resconses to Aeolicants' Succestion of Mootness (June 9, 1988).
380RDER (Granting Applicants' Motion For Leave to Reply) j (June 10, 1988).
39Acolicants' Reolv to NRC Staff RDd NECNP's Resoonse to Acolicants' Succestion of Mootness (June 17, 1988). This document is filed herewith as Appendix 6.
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and the sole issue which NECNP properly may litigate. App.'.icants have mooted that issue by agreeing to remove all RG-58 coaxial cable presently required to meet the environmental qualification.
requirements of 10 CFR 50.49. There is no contention in this case, and never has been,that Applicants were not capable of selecting what components have to be environmentally qualified. Indeed, there has never been a contention that the Seabrook organization was not fully technically qualified."40 On June 23, 1988, a telephone conference was held.41 Again NECNP argued its concerns, all of which were of the same nature as outlined in their written reply, 1.g.
questions going 'o the Applicants' technical ability to determine which cables needed to be qualified and their ability to select proper replacement cable.42 The Staff adhered to its position that this was basically a matter fcr summary disposition, stating that on the basis of what had been filed, it was now the Staff's position, subject to further study, that:
"(T]he record contains all the information necessary for the Board to issue a determination favorable to the applicants on this remanded contention."43 Applicants reiterated the jurisdictional argument alluded to l
40Annandix 6 at 5.
41Accendix 1, cassim.
i l 42Anoendix 1 1162-65.
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- 43Accendix 1 at 1166.
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1 above.44 After deliberation, the Licensing Board then issued the order at bar45 which rejected the suggestion of mootness and opened discovery and placed the matter on a track where resolution, even by way of summary disposition, will be impossible prior to October of this year.46 The Licensing Board also refused to certify the questions presented by this Appeal and Petition to this Appeal Board.47 As articulated by the Licensing Board, the issues to be tried are whnther Applicants have selected the correct cables to be replaced, and whether RG-59 is an acceptable substitute.48 It is in the foregoing posture that this matter comes before this Appeal Board.
ARGUMENT I. The Appeal Board Should Address the Appeal.
A. There Exists an Acceal as of Richt in the Circumstances of this Case.
As appears from the statement of facts, the order at bar amounts to an order granting the admission of new contentions l directed at the technical qualifications of the Applicants.
l That is to say the original remanded issue of whether or not 44Accendix 1 at 1169-73; 1174-75 45Accendix 1 at 1177-79.
46 Egg Accendix 1 at 1181.
47Accendix 1 at 1178.
48Accendix 1 at 1178-79. The Board specifically stated that it would not be issuing any further formal order.
Aeoendix 1 at 1182.
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RG-58 cable is, in fact, environmentally qualified is gone.
What is to be litigated is whether or not the Applicants know how to find the correct cables and select a proper substitute. The posture of this case is no different than if NECNP had filed a new set of contentions and they had been allowed by the Board. For the reasons set forth in 9 action II hereof, it is the Applicants contention that none of these new contentions should be admitted for litigation. Thus the Applicants are entitled to an appeal of right under 10 CFR 52.714a. If the Applicants prevail in this Appeal, this will brir.g this discrete matter to a close. In such circumstances, where the contention to be litigated is wholly changed by the Licensing Board, an appeal of right should be held to lie.
B. In any Event, Directed Certification Should Be Granted
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The general rule as to directed certification is that normally it is not granted except!
"where the ruling below either (1) threatened the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner."49 In addition, while not dispositive of the issue, an order 49Public Service Comoany of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977).
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which must be r. viewed promptly or not at all is a fit candidate for directed certification.50 As argued below, the order at bar has resulted in a proceeding, or discrete portion thereof, not being wholly terminated when it should have been. As such, it does not merely affect the structure of a proceeding, it creates it. In addition, if there is no review granted now, the legal 1ssues of jurisdiction, violation of the gna sconte rules, and violation of 10 CFR 52.734 (reopening) raised by this filing will never be reviewed. The substantive issues will have been tried as ordered by the Licensing Board, and the issue of whether they should have been tried will be moot and of academic interest only. If the legal position of the Applicants is correct, and we believe it is, it is only by immediate review of the order at bar that the position can be vindicated.
II. The Order Should be Reversed on the Merits A. The Licensina Board is Without Jurisdiction to Entertain the Contentions now Contemolated for Litication It is fundamental to NRC jurisprudence that a Licensing Board which receives a matter back on remand has jurisdiction only over those particular issues remanded to it.51 As is 50231 Kansas Gas & Electric Co._ (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-327, 3 NRC 408, 413 (1976).
51 Carolina Power & Licht Co. (Shearon Harris Nuclear Power Plant, Units 1-4), ALAB-526, 9 KRC 122, 124 and n.3 (1979); Portland General Elec_tric Co. (Trojan Nuclear Plant),
ALAB-5 3 4, 9 NRC 287, 289-90 N.6 (1979).
15
F clear from the Statement of the case above, the only issue which was remanded to the Licensing Board was the issue of whether RG-58 cable was in fact environmentally qualified.
This is clear from the various statements or remand quoted above.52 By their filing, and subsequent replacement of the RG-58 cables of concern,53 the Applicants have mooted that issue. The Licensing Board was given no writ to explore the Applicants' ability to find cables or select replacements.
No one ever contended in this case that these Applicants were incapable of performing such tasks. Thus in putting to hearing these issues, the Licensing Board has exceeded its jurisdiction on remand.
B.The Order of the Licensina Board Violates the Sua Soonte Rules.
It may be argued that the Licensing Board, in issuing the order was, in essence, raising these issues of the Applicants ability to locate and replace cable sua sconte.
However, such an argument is without merit. To begin with, the Licensing Board, if, indeed, it intended to act aga sconte, has failed to follow the procedure of advising the Office of the General Counsel as it is required to do.54 Prescinding from this procedural problem, the fact is that 52E uora, pp.6, 7, 9.
53Accendix 1 at 1162.
54 Texas Utilities Generatina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-24, 14 NRC 614 (1981); id., LBP-81-23, 14 NRC 159 (1981).
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there could be no exercise of sua sconte authority in this setting, because the necessary prerequisite of a serious safety question 55 simply is not present. The affidavits show the methodology that was used to select the cables to be replaced, and, indeed the Staff has indicated preliminarily that they find the materials adequate. More importantly, in deciding whether to raise an issue EMA sconte an NRC tribunal may, and should, take into account the efficacy of Staff review with respect to the matter.56 The issues of whether all the right cables have been replaced and whether the cable used to replace them is appropriate are issues wholly objective in nature to be judged by objective standards; as such, they are classically issues properly left to Staff resolution.57 In short, there can be no justification under the sua sconte rules for what has taken place here.
C. The Order Violates the Rules Governina the Reocenina of Closed Issues.
As indicated above, the hearing that the Licensing Board contemplates holding will be a hearing on the technical 5510 CFR 12.760a 56113 Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Power Station, Unit No. 1), CLI-82-20, 16 RRC 109 (1982). reconsideration denied, CLI-83-4, 17 NRC 75 (1983).
57 Egg Louisiana Power and Licht Comoany (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1104-05 (1983); Carolina Power and Licht..Co.. (Shearon Harris Nuclear Power plant, Units 1,2,3, and 4), CLI-74-22, 7 AEC 939, 951-52 (1974).
17 f
qualifications of the Applicants, i.g., their ability to select cables for replaceaent and their ability to select a competent replacement cable. The technical qualifications of the Applicants to construct Seabrook Station was litigated and resolved in the Applicants' favor in the Construction Permit phase of the Seabrook proceeding.58 No technical qualifications issue was ever raised in the operating license proceeding. The technical qualifications of the Applicants were found adequate by the Director, NRR, acting for the Commission when the presently outstanding operating license was issued.
It is highly questionable whether the Licensing Board would even have jurisdiction at this point to open the issue of technical qualifications.59 But in any event, no proper motion has been filed and no attempt has been made by anyone to satisfy the requirements of the Rules of Practice regarding reopening.60 CONCLUSION The instant order exceeds the jurisdiction of the Licensing Board; it violates the anA scont: :lles of the Commission; it constitutes an improper reopening of an issue 58Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), 3 NRC 857, 866-67 (1976) 59 Houston Lichtina & Power Co. (South Texas Project, Units 1 nd 2), ALAB-381, 5 NRC 582 (1977); Carolina Power &
Licht Co x (Shearon Harris Nuclear Power Plant, Units 1-4),
6010 CFR 52.734.
18
e fully litigated in the construction permit stage and as to which no contention has ever been aised in the operating license stage. We respectfully suggest it should be reversed and the RG-58 cable issue declared moot.
Respectfully submitted,
- [ ' --
-q g ,i Thoma s G .,.Ditpfa n ,' J r .
Deborah'S, Steenland Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 Ccunsel for Acolicants l
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00f. KE i,E 0 CERTIFICATE OF SERVIE I, Thomas G. Dignan, Jr., one of the attornegg f geP5 :25 Applicants herein, hereby certify that on June 28 P1 ,I made service of the within document and appendices thereto by depositing copies thereof with Federal Express, p3epaid,?for;<
delivery to (or where indicated, by depositing in0&hei UnitedWM ~
States mail, first class, postage paid, addressed to)UPAh#
Alan S. Rosenthal, Chairman Howard A. Wilber Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Thomas S. Moore Mr. Ed Thomas Atomic Safety and Licensing FEMA, Region I Appeal Panel 442 John W. McCormack Post U.S. Nuclear Regulatory Office and Court House Commission Post Office Square East West Towers Building Boston, MA 02109 4350 East West Highway Bethesda, MD 20814 Administrative Judge Sheldon J. Robert Carrigg, Chairman Wolfe, Esquire, Chairman Board of Selectmen Atomic Safety and Licensing Town Office Board Panel Atlantic Avenue U.S. Nuclear Regulatory North Hampton, NH 03862 Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814 Administrative Judge Emmeth A. Diane Curran, Esquire Luebke Andrea C. Ferster, Esquire 4515 Willard Avenue Harmon & Weiss Chevy Chase, MD 20815 Suite 430 2001 S Street, N.W.
Washington, DC 20009 Dr. Jerry Harbour Stephen E. Merrill, Esquire Atomic Safety and Licensing Attorney General Board Panel George Dana Bisbee, Esquire U.S. Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General East West Towers Building 25 Capitol Street 4350 East West Highway Concord, NH 03301-6397 Bethesda, MD 20814 1
Adjudicatory File Atomic Safety and Licensing Sherwin E. Turk, Esquire Board Panel Docket (2 copies) Office of General Counsel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building One White Flint North, 15th Fl.
4350 East West Highway 11555 Rockville Pike Bethesda, MD 20814 Rockville, MD 20852
- Atomic Safety and Licens. -
Robert A. Backus, Esquire Appeal Board Panel Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 ,
Washington, DC 20555 Manchester, NH 03105 Philip Ahrens, Esquire Mr. J. P. Nadeau Assistant Attorney General Selectman's Office Department of the Attorney 10 Central Road General Rye, NH 03870 Augusta, ME 04333 Paul McEachern, Esquire Carol S. Sneider, Esquire Matthew T. Brock, Esquire Assistant Attorney General ,
Shaines & McEachern Department of the Attorney 25 Maplewood Avenue General P.O. Box 360 One Ashburton Place, 19th Fir.
Portsmouth, NH 03801 Boston, MA 02108 Mrs. Sandra Gavutis Mr. Calvin A. Canney l Chairman, Board of Selectmen City Manager l RFD 1 - Box 1154 City Hall Route 107 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03801
- Senator Gordon J. Humphrey R. Scott Hill-Whilton, Esquire U.S. Senate Lagoulis, Clark, Hill-Washington, DC 20510 Whilton & McGuire (Attn: Tom Burack) 79 State Street Newburyport, MA 01950
- Genator Gordon J. Humphrey Mr. Peter S. Matthews One Eagle Square, Suite 507 Mayor Concord, NH 03301 City Hall (Attn: Herb Boynton) Newbu ryport, MA 01950 Mr. Thomas F. Powers, III Mr. William S. Lord 1 Town Manager Board of Selectmen l Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 l
l - _
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n H. Joseph Flynn, Esquire Brentwood Board of Selectmen Office of General Counsel RFD Dalton Road Federal Emergency Management Brentwood, NH 03833 Agency 500 C Street, S.W.
Washington, DC 20472 Gary W. Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03841 Concord, NH 03301 Judith H. Mizner, Esquire Charles P. Graham, Esquire 79 State Street, 2nd Floor Murphy and Graham Newburyport, MA 01950 33 Low Street Newburyport, MA 01950 Thomas G.' Digr%n, Jr.
(*=U.S. First Class Mail.)
, ,,.-n- . - ,-
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING APPEAL BOARD
)
In the Matter of )
)
PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL-1 NEW HAMPSHIRE, ET AL. ) 50-444-OL-1
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(Seabrook Station, Units 1 ) (Onsite Emergency i and 2) ) Planning and Safety
) Issues)
APPENDICES TO APPLICANTS' APPEAL AND PETITION FOR DIRECTED CERTIFICATION OF AN ORDER OF THE ATOMIC SAFETY AND LICENSING BOARD REJECTING APPLICANTS' SUGGESTION OF MOOTNESS WITH RESPECT TO THE ISSUE OF ENVIRONMENTAL QUALIFICATION OF RG-58 CABLE
-- _ _ _ _ _ _ _ _ _ _ _ _ _ ___- _ _ _ _ _ ________________-__________D
l UNITED STATES NUCLEAR REGULATORY COMMISSION In the Matter of: )
)
PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL-1 NEW HAMPSHIRE, ET AL. ) 50-444-OL-1
) (On-Site EP&S)
(Seabrook Station )
Units 1 and 2) )
)
PAGES: 1159 through 1187 PLACE: Bethesda, Maryland DATE: June 23, 1988
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1159 1 UNITED STATES NUCLEAR REGULATORY COMMISSION 2 ATOMIC SAFETY AND LICENSING BOARD 3
4 In the Matter of: )
)
5 PUBLIC SERVICE COMPANY OF NEW ) Docket Nos. 50-443-OL-1 HAMPSHIRE, ET AL. ) 50-444-OL-1 6 (On-Site EP &S)
(Seabrook Station )
7 Unita 1 and 2) )
)
8 Thursday, 9 June 23, 1988 10 Room 424, West Tower 4350 East West Highway 11 Bethesda, Maryland 12 The above-entitled teatter came on for hearing, 13 pursuant to notice, at 3:26 p.m.
14 BEFORE: JUDGE SHELDON J. WOLFE Atomic Safety & Licensing Board 15 U.S. Nuclear Regulatory Commission East West Towers Building 16 4350 East West Highway Bethesda, Maryland 20814 17 JUDGE JERPY HARBOUR 18 Atomic Safety & Licensing Board U.S. Nuclear Regulatory Cosumission 19 East West Towers Building 4350 East West Highway 20 Bethesda, Maryland 20814 21 JUDGE DetETH A. LUEBKE Atomic Safety & Licensitag Board 22 U.S. Nuclear Regulatory Cossaission East West Towers Building 23 4350 East West Highway Bethesda, Maryland 20814 24 25 Beritage Reporting Corporation (202) 628-4888
l 1159A 1 APPEARANCES:
2 For the Aeolicant:
3 THOMAS G. DIGNAN, ESQUIRE Ropes & Gray 4 225 Franklin Street Boston, Massachusetts 02110 5
For the NRC Staff:
6 GREGORY BERRY, ESQUIRE 7 U.S. Nuclear Regulatory Comatission Office of the General Counsel 0 Fifteenth Floor 11555 Rockville Pike 9 Rockville, Maryland 20852 10 For New Enoland Coalition Aaminst Nucloar Pollution:
11 DIANE CURRAN, ESQUIRE 12 Harmon & Weiss Suite 430 13 2001 S Street, N.W.
Washington, D.C. 20009 14 15 16 17 18 19 20 21 22 23 24 25 Beritage Reporting Corporation (202) 628-4888
1160 1 PROCEED INGS 2 (3:26 p.m.)
3 JUDGE WOLFE: All right. This is Sheldon Wolfe.
4 Juc'qes Harbour and Luebke are in my of fice and we' re 5 listening in on a loudspeaker. And I would also advise that 6 this Conference is being transcribed.
7 When counsel speak, would you identify yourselves 8 so that the Reporter will know who is speaking.
9 Me have read all the comments and arguments of the 10 Staff's and NECNP's that were filed respective on June 2 and 11 Junt 9th, with regard to Applicant's suggestion of mootness, 12 and there is no need for counsel to repeat those written 13 cosaments and arguments.
14 Pursuant to our Order of June 10th, we will hear 15 first from NECNP's Ms. Curran, and then the Staff's Berry 16 will then present his arguments and comments upon 17 Applicant's reply of June 17th.
18 But before we get into that, I would address a 19 question to Mr. Dignan.
20 Eave the Applicants proceeded to direct the 21 substitution of the 12 RG-59 cables in place of the 12 RG-58 22 cables, and has this work been accomplished?
23 Mr. Dignan?
24 dUDGE RARBOURI I think we've lost Mr. Dignan. We 25 had a bleep and usually when you hear that bleep, somebody Eeritage Reporting Corporation (202) 628-4888
1161 1 just got dropped.
2 JUDGE MOIJE: Hello?
3 JUDGE HARBOUR Ms. Curran, are you still on?
4 MS. CURRAN: Yes, I'm still here.
5 JUDGE HARBOUR: Mr. Berry, are you still there?
6 MR. BERRY: Yes, I am, Your Honor.
7 JUDGE HARBOUR: Mr. Dignan, or anybody at Ropes &
8 Gray?
9 (No response) 10 JUDGE HARBOUR: They were the ones that dropped 11 off.
12 JUDGE WOIJE: Hold on. We'11 see what the problem 1
13 is here.
14 Mr. Dignan? What was the last thing you heard?
15 MR. DIGNAN: I heard you saying, Your Honor, that 16 counsel need not repeat the arguments they've made in their 2 17 prior filings.
18 JUDGE WOIJE A.ll right. And I indicated that we 19 would hear first from Ms. Curran, and then from Mr. Berry 20 addressing the Applicant's reply of June 17th.
21 And then I proceeded while you were off the air, I 22 proceeded to ask you, Mr. Dignan, have the applicants 23 directed the substitution of the 12 RG-59 cable in place of 24 the 12 RG-58 cable, and whether this work has been 25 completed?
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1162 1 MR. DIGNAN: I'm advised, Your Honor, and I have a 2 technical person with me here, Mr. Daly, who's a licensing 3 engineer, that the RG-58 cables have all been doenergized, 4 that the RG-59 cables have been installed and energized.
5 The field work in short is all done. I am advised there's 6 certain paper work that still has to be done. And they 7 expect the paper work will be finished Monday or Tuesday of 8 next week. But uhe field work is all done.
9 JUDGE WOIEE: All right.
10 Al'. right, Ms. Curran, you may address the 11 applicant's reply of June 17th.
12 MS. CURRAN: All right. I'd just like to at first 13 intreduce Dean Tousley who is with me on the telephone 14 today.
15 JUDGE WOIEE: Who is that, please?
16 MR. TOUSLEY: Dean Tousley.
17 JUDGE HARBOUR How do you spell it?
18 MR. TOUSLEY: Tousley.
19 JUDGE WOIEEt I see. And Mr. Tousley is an 20 attorney, Ms. Curran?
21 MS. CURRAN: Yes.
22 JUDGE WOIEE: All right.
23 MS. CURRAN: We have had a chance to have our 24 consultant take a preliminary look at the material submitted 25 by applicants. And as a result, we're still in a position Eeritage Reporting Corporation (202) 628-4888
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1 where we still have a number of questions about this issue.
2 They're basically the same questions that are raised in our ..
3 filing of June 9th.
4 And I can just summarize the three basic points 5 for you. We still are not satisfied with the applicant's 6 stataments regarding their method for identifying all the 7 RG-58 cable. Mr. Pollard gave me two pages of very .
8 technical questions that he has about the method that was -
9 used, whether the review is truly independent.
10 I don't feel comfortable not having him here and 11 not having this written down in a very exact form going ,
12 through each of those questions, but basically they are 13 questions about the independence of the review. It's not ,
14 clear whether the applicants looked for all the possible 15 purchase orders involving RG-58 cable.
16 Mo're unclear as to whether all 12,000 schematic -
17 drawings were reviewed, whetner those drawings were e 18 independent of the CASP program, or possibly derived from 19 that program.
20 And also whether the applicants compared the ,
21 drawings to the actual conditions in the plant.
22 Those are questions that remain open.
i 23 The second major issue is that we still don't 24 exactly what functions are served by RG-58 cable. We've 25 gotten some more information on the computers that are Beritage Reporting Corporation ~
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1164 1 served but we still don't know enough about the nature of 2 the signals that are being conveyed. And we just don' t have 3 enough information to satisfy ourselves that the functions 4 performed by the cable are not safety related.
5 And finally, we don't know what the environmental 6 requirements for RG-58 cable are, and hence, we can't 7 evaluate whether RG-59 cable actually would meet those 8 requirements. And we're assuming that they must be 9 different or certainly there's a reason @le inference that 10 there is some difference between the requirements for the 11 two cables, given that two separate cables wars ordered in 12 the first instance, and that RG-58 cable is more expensive 13 than RG-59. There must have been a reason for the purchase 14 such that it's worth inquiring into what are the different 15 requirements for these two cables.
16 We don't think that g!ven the number and 17 seriousness of the questions that we have here that this is 18 susceptible to any kind of ministerial solution as the 19 applicants suggest.
20 What we think we need is more discovery, including 21 an opportunity to review these documents that the applicants 22 are relying on, the task documents, the schematic drawings, 23 an opportunity to look at the cable in the plant, and it's 24 possible that when discovery is completed, we can resolve 25 this on the basis of affidavits, although, as I stated in Beritage Reporting Corporation (202) 628-4888
1165 1 our filing, we have questions about the credibility of the 2 applicants' statements, given the change in position here.
3 JUDGE WOLFE: I see. Well, you've f airly well 4 tracked what you've stated in your June 9th submission.
5 Isn't that correct, Ms. Curran?
6 MS. CURRAN: Yes, but with the addition that we 7 have within at least a preliminary review of Mr. Bergeron's 8 affidavit, and it continues to raise questions for us, and 9 has not answered those questions.
10 JUDGE MOLFE: I see.
11 Mr. Berry?
12 MR. BERRY: Yes, this is Mr. Berry. Thank you, 13 Your Honor.
14 Like Ms. Curran, the Staff slao after having 15 reviewed applicants' June 17th response would basically 16 track what we've stated before in our June 2nd response.
17 You'll notice that the position that the Staff 18 took in that response was that we viewed the Bergeron 5
19 af fidavit and applicants' filing as the nature of evidence 20 tantamount to a notion for summary disposition. It 21 indicated some additional information that applicants should 22 consider introducing in order to bolster and supplement that 23 which we regard as a motion for summary disposition.
24 Having made a preliminary review of the June 17th 25 filing, the Staff at this time is bisically inclined to the 5eritage Reporting Corporation (202) 628-4888
1166 1 view that a motion for summary disposition would be 2 appropriate and probably should be granted, although we'd 3 have to study it further . And the Staff would file an 4 affidavit of its own. ,
5 But our review of that supplemental information 6 contained in Mr. Bergeron's affidavit leads the Staf f to the 7 view at least held at least at this time that, one, that the 8 RG-59 cable would be an adequate substitute for the RG-58.
9 And, two, that the RG-58 cable has been removed from all 10 places where it would otherwisw be required to be qualified 11 under 10 CFR 50.49.
12 So, in short, Your Honor, tha Staff position at 13 this time is that the record contains all,the information 14 necessary for the Board to issue a determination favorable 15 to the applicants on this romanded contention.
16 JUDGE MOLFE All right.
17 Is there anything else now to be added?
18 MS. CURRAN: Well, I would just like to emphasize 19 that we think a motion for summary judgment is premature at 20 this point, because we really haven't had a complete 21 opportunity to review the record that applicants are 22 apparently basing this change in position.
23 JUDGE WOLFE: Yes.
24 MS. CURRAN: It's not the same information that we 25 had in the former hearings, and I think we're entitled to seritage Reporting corporation (202) 628-4888
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1167 1 explore the basis for their change in position thoroughly 2 before we go through the summary judgment process. And I 3 think at this point, it's still premature.
4 JUDGE WOLFE: Yes.
5 MR. BERRY: This is Mr. Berry, Your Honor.
6 Just briefly in response to the question as to 7 whether discovery ought to be permitted on this remand 8 proceeding, and if so, how much or how extensive. I would 9 state at this time that the Staff view on that is, number 10 one, I believe that the applicants have indicated that the 11 source materials and underlying records and documents here 12 are available to the parties.
13 Two, I believe that the June 17th submission by 14 the applicants contains a lot of the information that would 15 be sought in the discovery.
16 Three, the Staff doesn't believe that this is a 17 case where wide-reaching, far-ranging, open-ended discovery 18 is either necessary or appropriate. I think we're dealing 19 with a limited, with a narrow issue here, namely, whether 20 RG-58 is environmentally qualified or in the event that it's 21 going to be replaced, whether RG-59 cable is an acceptable 22 substitute.
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23 So the Staff is not opposed to the party's NECNP, 24 the Staff having the opportunity to discover documents, but 25 I think we ought to be clear here that this is not a case -
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1168 1 where wide-ranging, far-reaching, open-ended discovery is 2 either necessary or appropriate.
3 MS. CURRAN: May I respond to that?
4 JUDGE MOLFE: Okay, Ms. Curran.
5 MS. CURRAN: What we're asking for is diccovery
[
6 that is relevant to the new information that has been and 7 the new position that applicants have taken in this 8 proceeding. Obviously, we' re only entitled to relevant L 9 discovery but their position's completely changed, and I 10 think we're entitled to explore the basis for that change.
11 JUDGE MOLTE: Well, I'm not going to rule on 12 discovery matters now. But I suggest -- well, let me get 13 into that a little bit later. But I'm not going to rule on 14 any matters of discovery.
15 If such matters do come up during the course of 16 any discovery, we would hope that the cbjections to produce 17 or the objections to respond would be phoned in to the I 18 Board, to me, upon proper and timely notice, so that the 19 other Judges could be here. And you lay out what the 20 objections are and what the movant has to say, and then the 21 Board without more will rule on the objection and order 22 production, or whatever, or disallow production.
23 I would think that would tend to expedite matters 24 and we wouldn't have this blizzard of papers that we've all 25 been inundated with.
N Eeritage Reporting Corporation (202) 628-4888
1169 1 All right, anything else now?
2 All right. As I said, I was going to give --
3 MR. DIGNAN: Your Honor, this is Tom Dignan.
4 JUDGE MOLFE Yes?
5 .MR. DIGNAN: I was wondering is it appropriate for 6 me to have an opportunity to reply to the arguments you've 7 just heard?
8 JUDGE MOIEE: Well, how say you, Mr. Berry? Ms.
9 Curran?
10 MS. CURRAN: Fine.
11 JUDGE MOIEE: Okay.
12 Mr. Berry? Mr. Berry?
13 MR. BERRY: The Staff would be interested in 14 hearing what Mr. Dignan has to say, 15 JUDGE MOIEE: All right. Proceed, Mr. Dignan.
16 MR. DIGNAN: My problem is that the central legal 17 argument we made in our filing has not been addressed by 18 anything we have heard.
19 To me, there's a fundamental jurisdictional 20 question out here. As I read the Appeal Board's decision, 21 it sent back a single issue to the Licensing Board and that 22 is, is RG-58 qualified, or is it not. Now, we eluded this 23 by removing it from the harsh environment.
24 Now, any argument that says that they can litigate ,
25 the question of whether we found the right cables, we know Earitage Reporting Corporation -
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1 what cable to put in its place, is not a contention as to 2 environmental qualification; it is a contention of technical 3 qualifications of the applicant.
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4 No such contention has ever been raised in this 5 proceeding. A technical qualification contention would have 6 been properly raised way back at the outset of the 1
7 proceeding. And I respectfully suggest that while we've \( " ~
8 addressed all the concerns of the Staff and those, we ,
j f ' .
9 thought we'd addressed NECNP's too on this matter by filing < . '
10 the Bergeron affidavit, I don't want lost sight of the fact ,,',,
11 that I don't think there's any jurisdiction in this Board, ,
12 respectfully, to entertain a technical qualifications 13 contention, which is essentially what NECNP is asking you to >
e 14 do here. Because NECNP wants to litigate whether we know 15 how to find cable. 1 16 Now, that being the case, unless the Board is
~
17 persuaded by my argument to declare this thing moot in light ;
18 of the filings we have made, and in light of the f act the 19 field work has been done, that I would respectfully ask the 20 Board to certify to the Appeal Board the question of whether 21 or not the Board has jurisdiction to entertain what I 22 respectfully suggest is a brand new, unrelated contention as 23 to the applicant's technical qualifications.
24 And I think before we embark on any discovery or 25 any susumary judgment type proceeding, this threshold 5eritage Reporting Corporation (202) 628-4888
1171 1 question of jurisdiction should be ruled upon. And I would 2 ask that if it's not favorable to us, that it be sent to the 3 Appeal Board as to whether the Appeal Board intended this 4 sort of thing to be litigated in light of the f act that 5 we've changed the cable out.
6 MS. CURRAN: I'd like to respond to that, if I 7 could.
8 JUDGE WOLTE: A.ll right, Ms. Curran.
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9 MS. CURRAN: The applicants could have come back 10 to the Licensing Board and provided some additional evidence 11 that this cable was qualified, or it could have come up with 12 some test results, or whatever, but it didn't. It decided 13 to replace the cable, and not even all the cable, just some 14 of the cable.
15 That doesn't make the issue go away. I think 16 we' re entitled to know whether or not they have correctly 17 identified what is not safety related cable, and whether 18 they have substituted it with cable which qualifies with the 19 application.
20 I think they have completely changed the basis to 21 their position, and I think that is a legitimate grounds for 22 this litigation here. I don't think there's any need to 23 certify anything t.o the Appeal Board.
24 MR. DIGNAN: Your Honor, I would renew the bidding 25 on this issue. NECNP has gotten much more out of Earitage Reporting Corporation (202) 628-4888
_ _ _ 1
9 1172 .
1 environmental qualification then they were entitled to. The 2 original contention was ': hat we hadn't put times on that. -
3 If you recall, we objected to them even getting 4 into the issue on cross examination, and the Board let them 5 try that out. But by no stretch of the imagination, is 6 NECNP or anybody else ever raised a contention as to the 7 technical qualifications of my clients to find cable, remove 8 it, or do anything else of a technical nature. There has 9 not been even a technical qualification contention raised in 10 general with respect to the Seabrook project, and that is 11 what is being raised now. -
12 And the only issue that you've got on remand, and 13 under those cases you're confined to the jurisdiction of 14 that issue, is is RG-58 environmentally qualified, and I 15 respectfully suggest that that question has been in fact 16 mooted.
17 JUDGE HARBOUR: Is there RG-58 cable in a plant .
18 that's not covered by these 127 19 MR. DIGNAN: Yes, of course there is. But our 20 position is, as for the reasons we state in the affidavit, 21 none of it is in a harsh environment where it has to be 22 environmentally qualified.
23 And no one has ever taken the position that my 24 clients are incapable of determining the difference between 25 the two. That's a technical qualification issue.
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t 1173 1 That's the reason I say, jurisdiction isn't -
2 there. This is no longer an EQ issue, it's a technical 3 qualifications issue that they're arguing.
4 JUDGE WOLFEt Anything more, Mr. Berry?
5 MR. BERRY: Yes. This is Mr. Berry.
6 Staff sees some merit to Mr. Dignan's argument as 7 well as Ms. Curran's. I think the fundamental point, .
8 though, Your Honor, that has to be addressed is that as I 9 believe one of the Judges just pointed out, there does 10 remain in the plant right now some RG-58 cable.
11 Applicants have stated that they are removing the 12 RG-58 cable or substituting the RG-58 cable that is located 13 in a harsh environment. Now, if that's so, if all those 14 instances of RG-58 cable located in harsh environments have 15 been replaced, then the Staff would be inclined to agree >
16 with applicants that there is no longer an issue in 17 controversy.
18 on the other hand, if there is still some RG-58 19 cable that is located in harsh anvironment that's not being * -
20 replaced, than we would, then Ms. Curran would be corrected 21 and the issue wouldn't be mooted. We do believe, however, 22 that the Bergeron affidavit fully explains why all the RG-58 23 cable located in harsh environments has been identified and 24 has been replaced.
25 So in that sanse, we believe that the Board can Meritage Reporting Corporation
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1174 1 make a finding and should make a finding to that effect that 2 those environments where RG-58 cable previously was located 3 have been replaced by RG-59. Those are the only instances 4 which 50.49 applies.
5 And so therefore the concern raised by the 6 contention that's been remanded has been satisfactorily 7 addressed. There's no longer a controversy now between the 8 parties, and the Board should issue a determination 9 favorable to the applicant. They could do that either 10 claiming that the contention is now moot, or that the safety 11 concern has been adequately resolved.
12 So it's our position that before the issue can be 13 determined to be mooted, the Board would have to determine that all those harsh environments where RG-58 had previously
- 14 15 been located have been replaced with the qualified RG-59.
16 MR. DIGNAN: Your Honor, with great respect to my 17 brother who represents the Staff, I have to disagree with 18 that analysis. The point I'm trying to make is let's assume 19 what the applicants have done is instead of filing this 20 technical material trying to address all the questions that 21 have been raised, we had just come to the Board and said, ,
22 we're not going to use RG-58 in the harsh environment 23 anymore. We're withdrawing it, we're pulling it.
24 And we did no more than that. Then in order for 25 this litigation to continue, the Board or somebody would Eeritage Reporting Corporation (202) 628-4888
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1175 have had to raise, and the Board would have had to approve a ~" O E.
1 2 sua sponte issue of technical qualification of my client to 3 find cable.
4 Now, the Board has not raised that sua sponte and 5 gone through the procedures that have to be gone through to ,
6 do it, and no intervonor haa over raised technical 7 qualifications. Because the only issue up for grabs now, 8 whether you take the Staff's explanation or Ms. Curran's j 9 explanation, is can the applicant find the cable.
10 And that doesn't go to whether the cable is 11 qualified. It has nothing to do with environmental . -
12 qualifications. You are then questioning the technical 13 qualifications of people that construct the plant and . .
14 operate the plant, and that issue simply has never been 4 15 placed in litigation.
16 And it is too late for somebody to raise it now, 17 unless the Board chooses to raise it sua sponte, and that 18 will require going through the procedures necessary, 19 including notifying the Commission that the Board has 20 elected to do so.
21 JUDGE WOLFE I would like to hear your thoughts 22 on that, Mr. Berry. What would happen under that 23 hypothetical situation that Mr. Dignan posed, namely de-24 energizing all the RG-58 cable in the harsh environment and t 25 just replacing it, period?
Eeritage Reporting Corporation (202) 628-4888
1176 1 MR. BERRY: All of the cable? This is Mr. Berry 2 speaking. Do I understand correctly that if they de-3 energized all RG-58 cables and replaced them with RG-597 4 JUDGE WOLFE: No, I think Mr. Dignan meant in the 5 12 --
6 MR. DIGNAN: Harsh environment.
7 JUDGE WOLFE In the harsh environment, yes.
8 MR. DIGNAN: And to say that we can't identify the 9 harsh environment cables is to say that we' re not 10 technically qualified, and that is a different issue than 11 what has been ramanded to this Board from the Appeal Board.
12 HR. BERRY: I understand Mr. Dignan's position, 13 Your Honor. Again, the Staff would just adhere to the 14 statement of its position that I just previously expressed, 15 that I don't believe that in the context cf this romand 16 proceeding that it injects a new contention or injects a new 17 issue, but what we're trying to determine is whether in fact 18 you know this action proposed by the applicant in fact moots 19 the issue.
20 And the Staff would agree that it would moot the 21 issue either, if on the one hand, all RG-58 cables were de-22 energised and replaced with RG-59. In that case, it would 23 be clear that the issue would be soot. Or on the other 24 hand, if only those RG-58 cables were replaced with the RG-25 59, if the record established that that represented the Maritage Reporting Corporation (202) 628-4888
1177 1 universe of the cables located in harsh environments.
2 But what the Staff is suggesting, Your Honor, is 3 that before you can make that determination that the issue 4 has been mooted, that you have to have some basis ts vgree S that all of the cables located in harsh environments have 6 been identified.
7 We're suggesting that the Bergeron affidavit 8 provides the basis to make that determination. But we do 9 believe that that determination has to be made.
10 JUDGE WOLFE All right. I thin;- that the Board 11 has heard enough.
12 Agreed?
13 All right. I'll put you on moot for a couple of 14 minutes. Hold oxt.
15 (Board confers.)
16 JUDGE WOLFE: Hello? Are we back on?
17 HR. BERRY: This is Mr. Berry for the Staff.
18 JUDGE WOLFE Mr. Dignan?
19 MR. DIGRAN: This is Mr. Dignan, yes, Your Honor.
20 JUDGN WOLTE: And Ms. Curran?
21 MS. CURRAN: I'm here.
22 JUDGE WOLFE: All right.
23 We've been discussing this and the Board rejects 24 applicant's suggestion of mootness as filed on May 19th, and 25 revised on May 27th which requested that we issue an order Eeritage Reporting Corporation (202) 628-4888
1 l ..
1178 1 finding that the issue regarding environmental qualification 2 of RG-58 7able is moot.
3 And further, we reject applicant's request that we i certify this question to the Appeal Board. We have decided 5 that discovery procedures shall be allowed. And that if 6 we're notified oy one or more of the interested parties that 7 they want to proceed via summary disposition, why then 8 summary disposition procedures will be invoked.
9 I would state that we agree with the Staff and 10 NECNP who pointed out that it must be established by the 11 applicants that a total of 126 RG-58 cables have been 12 installed at Seabrook, and it also must be established by 13 the applicants how it was determined that a particular RG-14 58 cabie belonged in one of the five groupings or 15 categories.
16 In shifting their position from initially 17 asserting before us and before the Appeal Board that all RG-18 58 cable had to be and were environmentally qualified but in 19 now arguing that only 12 RG-58 cables had to be 20 environmentally qualified, and that 12 environmentally 21 qualified RG-59 cables would be substituted, applicants 22 cannot now be heard to argue that the issue of environmental 23 qualification of RG-58 cable is now entirely mooted.
24 And further in so shifting their position, 25 applicants we find and conclude must prove that the RG-59 Beritage Reporting Corporation (202) 628-4888
1179 1 cable is a technically acceptable replacement for the RG-58 2 coaxial cable.
3 I believe, Judge Harbour, you had something to add 4 here?
5 JUDGE HARBOUR On the Appeal Board romand, if the 6 Appeal Board told us, gave ua guidance on the issues to be 7 considered which included the applications of the RG-58, 8 which included the circuits, that is, what's attached to 9 each end of it, and suggested that we should find out why 10 the operability code that was assigned did not seam to apply 11 to the use for which the cable was being made.
12 JUDGE WOLTE: All right.
13 I would add, however, that we will neither allow 14 nor give consideration to any arguments or to any efforts to 15 contend that the RG-59 cable is not environmentally .
16 qualified. Such an argument or contention was not raised '
17 before us in the proceeding, resulting in the partial 18 initial decision of March 25, 1987, and was not briefed and 19 argued by NECNF on its appeal to the Appeal Board from the 20 PID. <
21 Before us and before the Appeal Board, NECNP 22 solely contanded that the environmental testing of the RG-59 23 cable did not serve to environmentally qualify the untested 24 RG-58 cable. During that time, NECNF did not also contend 25 in addition, as it could have, that in any event the tests Beritage Reporting Corporation (202) 628-4888
1180
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1 applied to the RG-59 cable were insufficient even to qualify ,
2 that cable.
3 In ALAB-882 at 27 NRC 1, the Appeal Board refused 4 to consider that newly raised question because it had not 5 been presented in NECNP's appeal from the partial initial 6 decision.
7 And again in ALAB-886 at 27 NRC 74, after noting 9
8 that for the entire period that contention 1-B-2 was in 9 litigation before the Licensing Board, as well as during the 10 appeal from the PID, NECNP accepted implicitly if not 11 explicitly the environmental qualification of the RG-59 12 cable.
13 After noting that, the Appeal Board in 886 refused 14 to reopen the record and to admit a new contention 15 challenging the environmental qualification of the RG-59 16 cable. This ruling by the Appeal Board is now the law of 17 the case.
18 That applicants now propose to install 12 RG-59 19 cables to replace 12 RG-58 cabler does not excuse NECNP's 20 failure to have previously and timely raised the question of 21 the environmental qualification of the RG-59 cable.
22 So, if the parties would like for me to restate or 23 repeat rather what I'm now going to say, they may, because 24 it applies to discovery procedures and sussury disposition.
25 And of course, you will have your own transcripts. But if Isaritage Reporting corporation (202) 628-4888 .
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1181 1 you have a pencil, you might take down the dates on some of .
2 this.
3 Discovery shall be initiated immediately by NECNP, 4 the Staff and the applicants, and shall be completed by h,
5 August 15, 1988.
6 And I underscore for you, Ms. Curran, the use of 7 the words, shall be completed by August 15. And you 8 understand what I'm saying?
9 MS, CURRAN: I do.
10 JUDGE WOLFE: All right.
11 Interrogatories and answers thereto, and requests fcr production of documents and responses thereto shall be 12 ,
13 served by express mail.
14 The 30-day period for responses to requests for 15 production of documents under Section 2.741(d) is reduced to -
16 14 days in order to resolve this matter that's been hanging 17 around much too long.
18 Further, by no later than August 22, 1988, these 19 parties shall notify the Board whether or not each intends 20 to file a motion for summary disposition, and any motions .
21 for sunmaary dispositions shall be served by express mail on 22 or before September 12.
23 Any answers supporting or opposing a motion for 24 summary disposition filed pursuant to 10 CTR 2.*149 shall be
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25 served by express mail.
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l 1182 1 Are there any of these dates you want repeated?
2 If so, let me know.
3 MS. CURRAN: I wonder if you coulo repeat what you 4 were saying about --
5 MR. DIGNAN: Your Honor, is it your intention to _
6 memorialize both the decision and this motion into a 7 separate written order, or will the transcript be the 8 written order?
9 JUDGE MOLFE: I'm going to be out of town, Mr.
10 Dignan. I'm leaving tomorrow morning. I won't be back 11 until Tuesday morning. I won't have an opportunity.
12 MR. D_1mH : No, I'm just, what I'm wondering on 13 is, I'm not requesting it. I just wanted to know if it is 14 your intention to it.sse an official order beyond what is 15 contained in the transcript?
16 JUDGM WOIEE: It is not my intention to issus a 17 separate order.
18 MR. DIGNAN: Okay, thank you.
19 All right, Ms. Curran?
20 MS. CURRAN: I was asking when you were talking 21 abost the 2.741(d) , I think the time for production of 22 documents. Could you repeat what you said there?
23 JUDGE WOLFE: Ysa. The 30-day period for 24 responses to request for production of documents under l 25 Section 2.741(d) is reduced to 14 days.
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1183 1 Now, I don't think tnat much turnaround time is 2 needed certainly by Mr. Dignan. If you request certain 3 documents, I'm certain that he can turn around within a 4 couple of hours in light of the -- uhat was that Affidavit, 5 the Bergeron affidavit?
6 HR. DIGNAN: Your Honor, I'm confident I can turn
~1 it around in terms of accessibility, but there are major l 8 amounts, depending upon what they ask for, there are major 9 amounts of documents, and they may have to come up t.o the 10 site to review them.
11 JUDGE WOLFEt Yes.
12 MR. DIGNAN: I don't know what their request is
- 13 going to be, but if it's as broad as often these are, we're l 14 talking -- we're not talking a quarter inch of documents 15 that I'd br.ppily put in the .aailt we' re tal'cing about many 16 docements chat their technical people would just have to 1~1 come up and look at on the site to .acide what if any they l
l 18 would wanc.
l l 19 JUDGd WOIXEt Well, I would assurse, Ms. Curran, 20 that when you make such requests, as a matter of fact, I 21 would expect that you would go to the site, and look at 22 these documents. From what Mr. Dignan says, that they are 23 voluminous.
24 MS. CU14UW: Yes, I imagine we'll have to go up 25 there.
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1184 1 JUDGE WOLFE: Yes. Okay, well that's one thing 2 out of the way, Mr. Dignan.
3 All right, if there are no other questions, then.
4 MR. BERRY: Your Honor, this is Mr. Berry.
5 JUDGE WOLFE:- Yes?
6 MR. BERRY: We don't need you to repeat any of the 7 discovery datec and things, but I would just like to state 8 just for the record at this time, our poLition. And that is 9 the Staff, we believe that this discovery schedule is far 10 too long.
11 I understand that the Board has given it some 12 thought and has proposed what it con.siders a reasonable 13 discovery schtdule.
14 I would just liks to state our position that a
, 15 discovery schedule ending date of August 15th, we just think 16 it's too long by at inast three weaks.
17 MR. DIGNAN: I join in that, Your Honor, id respectfully, with a full understanding that it' a a : natter 19 of scard discretion.
20 JUDGE NOLFE Yes.
21 Ms. Curran?
I f
22 MS. CURRAN: If we're expected to be going up to l
l 23 the plant to look at these volumes and volumes of documents, 24 I think we need a substantial amount of time to look at 1
25 the,s. We're talking about time for at least two rounds of Eeritage Reporting Corporation (202) 628-4888
1185 1 interrogatories and possibly some depositions, and a visit 2 to the plant.
3 To me, this looks like a pretty reasonable amount 4 of time, maybe a little on the short side.
5 JUDGE MOIEE: Well, I'm going to let it stand, 6 because as I understand it, the documentation is voluminous.
7 So I'm going to hold everyone to that completion by 8 August 15 date. And I would be very loathe unless somebody 9 breaks a leg or whatever, something horrendous happens to 10 them, that the Board will hold firmly to August 15.
11 All right, if there are no further questions, the 12 conference is over.
13 HR. DIGNAN: Your Honor?
14 JUDGM WCIXE Yes?
15 MR. DIGItAN: Is the Reporter there?
16 JUDGE MOIXs Yes.
17 MR. DIGbtAN: I would like to advise the Reporter, 10 would they expedite this transcript and get it to us here at l
19 Ropes & Gray as soon as possible. We have e standing order i 20 in I think for five copies.
21 TER REPORTER: Understood.
22 JUDGE WOIXE All right.
23 Anyttang more?
24 (No response.)
25 JUDGE WOIXI: All right, the conference is Baritage Reporting Corporation (202) 628-4888
1186 1 concluded.
2 Thank you.
3 (whereupon, at 4:10 p.m., the conference in this 4 matter was concluded.)
5 6
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5eritage Reporting Corporation (202) 628-4888 b
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1 CERTIFICATE 2
3 This is to certify that the attached proceedings before the 4 United States Nuclear Regulatory Commission in the matter of:
5 Name: PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al (Seabrook Station, Units 1 and 2) 7 Docket Number: 50-443-OL-1 50-444-OL-1 8 Place: Bethesda , Maryland 9 Date: June 23, 1988 10 were held as herein appears, and that this is the original 11 transcript thereof for the file of the United States Nuclear 12 Regulatory Cozumission taken stenographically by me and, 13 thereafter reduced to typewriting by me or under the direction 14 of the court reporting company, and that the transcript is a s
15 true and accurate rp ord f/>the rogo proceedings.
16 ff/ /
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17 (Signatura typed): N m REWS 18 Of ficial Reporter 19 Heritage Reporcing Corporation 20 21 22 23 k 24 25 Heritage Reporting Corporation (202).628-4888